Coleman v. Battiest

• Decision Date: 19 December 1916
• Docket Number: Case Number: 8207
• Citation: Coleman v. Battiest, 162 P. 786, 65 Okla. 71, 1916 OK 1044 (Okla. 1916)
• Court: Oklahoma Supreme Court
• Parties: COLEMAN v. BATTIEST.

1916 OK 1044

162 P. 786

65 Okla. 71

COLEMAN v. BATTIEST.

Case Number: 8207

Supreme Court of Oklahoma

Decided: December 19, 1916

Syllabus

¶0 Indians--Indian Lands--Jurisdiction of District Court.

District courts of Oklahoma are without jurisdiction to order and decree the partition of lands inherited by full-blood Indians of the Five Civilized Tribes from a deceased allottee, who was also a full-blood Indian of one of said tribes.

Error from District Court, Atoka County; J. H. Linebaugh, Judge.

Action by Phoebe Coleman, by her legal guardian, R. M. Wilson, against William Battiest. There was a judgment for defendant, and plaintiff brings error. Affirmed.

W. F. Semple, for plaintiff in error.

Robt. M. Rainey, for defendant in error.

COLLIER, C.

¶1 This is an action brought by plaintiff in error, a minor, by her legal guardian, R. M. Wilson, to partition lands described in the petition in this cause. Hereinafter the parties will be designated as they were in the trial court. The amended petition, on which the cause was filed, omitting its caption, is as follows:

"Comes now the plaintiff, Phoebe Coleman, by R. M. Wilson, her legal guardian, and for her amended petition herein alleges and states:

"I. That the plaintiff is a minor, and that R. M. Wilson is the legally appointed, qualified, and acting guardian of the person and estate of the said Phoebe Coleman, a minor, by virtue of letters of guardianship issued out of the county court of Atoka county, Oklahoma.

"II. That the defendant is also a resident of Atoka county, state of Oklahoma, and that the land hereinafter described in plaintiff's petition is situated in Atoka county, of the state of Oklahoma, and is described as follows: The northwest quarter of section 19, township 4 south, range 10 east, Atoka county, Oklahoma.

"III. That the above-described land was the homestead allotment of Ellie Battiest, now deceased, who was duly enrolled as a citizen of the full blood of the Choctaw Tribe of Indians, opposite Roll No. 10668. That the said Ellie Battiest departed this life August 1915, in Atoka county, state of Oklahoma, intestate, leaving as her sole and only surviving heirs at law the following persons, to wit: Phoebe Coleman, plaintiff herein, who was the daughter and only child of Ellie Battiest, deceased, and William Battiest, who is the surviving husband of the said Ellie Battiest, now deceased. That the said Phoebe Coleman, a minor, plaintiff herein, is a member of the Choctaw Tribe of Indians, of the full blood, duly enrolled upon the approved rolls of said tribe as a new-born, opposite roll No. 1243. That the said William Battiest is an adult person and a full-blood Indian, and that the said Phoebe Coleman, a minor, plaintiff herein, and the said William Battiest, defendant above named, are the owners of an absolute estate of inheritance of the above-described lands.

"IV. Plaintiff further alleges and states that she is now in actual and peaceable possession of said above-described lands, and said land is located in Atoka county, state of Oklahoma, and that the plaintiff is entitled to an undivided one-half interest in and to said above-described land, and the defendant, William Battiest, is entitled to an undivided one-half interest in and to said land. That the said land hereinbefore mentioned is so situated as to be susceptible and capable of partition between the plaintiff and defendant. and plaintiff is entitled to have a decree of partition, appointing commissioners to partition said land between plaintiff and defendant, and decreeing plaintiff to be the sole and only owner of a fixed and definite part of said land, and that the defendant be the sole and only owner of a definite part of said land.

"Wherefore, plaintiff prays that commissioners be appointed to view, appraise, and partition said land, and that thereafter a decree of this court be entered adjudging the plaintiff to be the sole and only owner of a definite and certain parcel of said land, and the defendant to be the sole and only owner of a definite and certain parcel of said land, and for a judgment partitioning the rents arising from said land."

¶2 To the amended petition the defendant demurred, upon the ground that the petition does not state facts sufficient in law to constitute a cause of action against this defendant and in favor of plaintiff. Upon the hearing, the court sustained the demurrer to the petition, to which plaintiff duly excepted. Thereupon the plaintiff stated in open court that she elected to stand on her petition as amended and declined to plead further, and upon motion of defendant said cause was dismissed, to which action of the court plaintiff then and there duly excepted. From the order of the court sustaining the demurrer, and from the order of the court dismissing plaintiff's action, this appeal is prosecuted.

¶3 There is but one question involved in this appeal: Have the district courts of this state jurisdiction to partition an allotment of land inherited by Choctaw Indians of the full blood? The statute of this state (Rev. Laws 1910) providing for the partition of lands, in part, is as follows:

"4944. After the interests of all the parties shall have been ascertained, the court shall make an order specifying the interests of the respective parties, and directing partition to be made accordingly.

"4945. Upon making such order, the court shall appoint three commissioners to make partition into the requisite number of shares."

"4950. If partition be made by the commissioners, and no exceptions are filed to their report, the court shall render judgment that such partition be and remain firm and effectual forever.

"4951. If partition can not be made, and the property shall have been valued and appraised, any one or more of the parties may elect to take the same at the appraisement, and the court may direct the sheriff to make a deed to the party or parties so electing, on payment to the other parties of their proportion of the appraised value.

"4952. If none of the parties elect to take the property at the valuation, or if several of the parties elect to taste the same at the valuation, in opposition to each other, the court shall make an order directing the sheriff of the county to sell the same, in the same manner as in sales of real estate on execution; but, no sale shall be made at less than two-thirds of the valuation placed upon the property by the commissioners."

"4955. The court shall have full power to make any order, not inconsistent with the provisions of this article, that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests."

¶4 It therefore appears, in considering the...